Court: We have no control over EPA's actions

Saturday

Nov 10, 2012 at 3:15 AMNov 10, 2012 at 10:49 AM

By Michelle Kingstonmkingston@fosters.com

DOVER ­— The Merrimack County Superior Court declined to issue declaratory judgment in favor of the Great Bay Municipal Coalition to determine if the New Hampshire Department of Environmental Services was required to follow the New Hampshire Administrative Rulemaking procedures in developing and imposing nutrient criteria for the Great Bay Estuary.

“As DES correctly argues, the EPA has ultimate authority to determine whether to list the Great Bay Estuary as an impaired waterway,” the court's decision states, saying the Court does not have control over the actions of the United States Environmental Protection Agency and the EPA is the only entity that will make a decision that could harm the Great Bay Municipal Coalition.

DES also argues even if the Court were to say the 2009 Criteria was “improperly promulgated,” and the DES has to remove it for the Estuary, the EPA is still able to rely on the document in issuing NPDES permits, according to federal law.

This case began when the Great Bay Municipal Coalition, comprised of Dover, Portsmouth, Rochester, Exeter and Newmarket said DES failed to put a document into effect the DES issued in June 2009 known as “2009 Criteria.” The document, officially entitled, “Numeric Nutrient Criteria for the Great Bay Estuary,” sets out water quality criteria for the nitrogen in the water.

Once this document was created, DES declared that the Great Bay Estuary had too much nitrogen and, as a result, cities and towns would need to spend close to $100 million to update their water treatment facilities.

The Coalition claims the United States Environmental Protection Agency used the impairment caused by the excess nitrogen to modify National Pollutant Discharge Elimination System permits issued to the Coalition for the Estuary previously. They said, according to the court's decision, “that DES' impairment finding directly influenced EPA's permit modifications because water quality criteria determine the effluent limitations for specific pollutants in permits which are imposed by NHDES and USEPA.”

DES disagreed, stating the Clean Water Act, a water quality criteria used to identify waters that need to reduce their amount of pollutants, requires each state to adopt its own standards for water quality. The court's decision states that even though the state has authority to craft discharge permits, DES does not issue them. EPA issues all permits and DES adopts them as written.

The court decision states, again, this is a federal issue with the EPA being the entity that would make the decision to harm the coalition and require them to update the water treatment facilities.

“EPA not only has ultimate authority to craft the NPDES permits issued to Petitioners, it is not bound by a ruling from this Court regarding the validity of the 2009 Criteria as a basis for permitting,” the court's decision states.

“The Great Bay Municipal Coalition believe they are entitled to a ruling by the court on whether the DES' numeric criteria for nitrogen in the Great Bay is in fact a rule under state law and are considering making a request that the court reconsider its decision,” City Manager Michael Joyal wrote.

If the coalition does go forward with the request, it has 30 days to ask the judge in a written petition to reconsider his decision, according to Joyal.

The judge may or may not grant the request. That is ultimately his decision.